Lead Opinion
delivered the opinion of the Court.
In this case we address the constitutionality of the unanimity requirement in North Carolina’s capital sentencing scheme. That requirement prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find. We hold that under our decision in Mills v. Maryland,
I
Petitioner Dock McKoy, Jr., was convicted in Stanly County, North Carolina, of first-degree murder. During the sentencing phase of McKoy’s trial, the trial court instructed the jury, both orally and in a written verdict form, to answer four questions in determining its sentence. Issue One asked:
Issue Two asked: “Do you unanimously find from the evidenсe the existence of one or more of the following mitigating circumstances?” Id., at 8, 24. The judge submitted to the jury eight possible mitigating circumstances. With respect to each circumstance, the judge orally instructed the jury as follows: “If you do not unanimously find this mitigating circumstance by a preponderance of the evidence, so indicate by having your foreman write,' ‘No,’ in that space” on the verdict form. Id., at 10-13. The verdict form reiterated the unanimity requirement: “In the space after each mitigating circumstance, write ‘Yes,’ if you unanimously find that mitigating circumstance by a preponderance of the evidence. Write, ‘No,’ if you do not unanimously find that mitigating circumstance by a preponderance of the evidence.” Id., at 24.
The jury unanimously found the statutory mitigating circumstance that McKoy’s capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.”
Because the jury found the existence of mitigating circumstances, it was instructed to answer Issue Three, which asked: “Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?” Id., at 13, 26 (emphasis added). The jury answered this issue “Yes,” and so proceeded to the final issue. Issue Four asked: “Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by youT Id., at 14, 26 (emphasis added). The jury again responded “Yes.” Pursuant to the verdict form and the court’s instructions, the jury therefore made a binding recommendation of death.
During the pendency of petitioner’s direct appeal to the North Carolina Supreme Court, this Court decided Mills v.
Petitioner challenged his sentence on the basis of Mills. The North Carolina Supreme Court, in a split decision, purported to distinguish Mills on two grounds and therefore denied .relief. First, it noted that “Maryland’s procedure required the jury to impose the death penalty if it ‘found’ at least one aggravating circumstance and did not ‘find’ any mitigating circumstances” or “if it unanimously found that the mitigating circumstances did not outweigh the aggravating circumstances.”
Second, the court asserted that whereas in Marylаnd’s scheme evidence remained “legally relevant” as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, id., at 41,
II
Despite the state court’s inventive attempts to distinguish Mills, our decision there clearly governs this case. First, North Carolina’s Issue Four does not ameliorate the constitutional infirmity created by the unanimity requirement. Issue Four, like Issue Three, allows the jury to consider only mitigating factors that it unanimously finds under Issue Two. Although the jury may opt for life imprisonment even where it fails unanimously to find any mitigating circumstances, the fact remains that the jury is required to make its decision based only on those circumstances it unanimously finds. The unanimity rеquirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a “‘sentence less than death.’” Eddings v. Oklahoma,
Second, the State Supreme Court’s holding that mitigating evidence is “relevant” only if the jury unanimously finds that it proves the existence of a mitigating circumstance distorts the concept of-relevance. “[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” New Jersey v. T. L. O.,
“Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have, mitigating value. Whether the fact-finder accepts or rejects the evidence has no bearing on the evidence’s relevancy. The relevance exists even if the fact-finder fails to be persuaded by that evidence. It is not necessary that the item of evidence alone convinces the trier of fact or be sufficient to convince the trier of fact of the truth of the proposition for which it is offered.”323 N. C., at 55-56 ,372 S. E. 2d, at 45 (Exum, C. J., dissenting), citing M. Graham, Handbook of Federal Evidence §401.1, n. 12 (2d ed. 1986).
Clearly, then, the mitigating circumstances not unanimously found to be present by the jury did not become “irrelevant”
Furthermore, our holdings in Skipper v. South Carolina,
Nor can the State save the unanimity requirement by characterizing it as a standard of proof intended to ensure the reliability of mitigating evidence. The State’s reliance on
“Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; Hitchcock v. Dugger,481 U. S. 393 (1987); by the sentencing court, Eddings v. Oklahoma, supra; or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, . . . the conclusion would necessarily be the same: ‘Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.’ Eddings v. Oklahoma,455 U. S., at 117 , n. (O’Connor, J., concurring).”486 U. S., at 375 .
It is no answer, of course, that the jury is permitted to “consider” mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Rather, Mills requires that each juror be permitted
Finally, we reject the State’s contention that requiring unanimity on mitigating circumstances is constitutional because the State also requires unanimity on aggravating circumstances. The Maryland scheme in Mills also required unanimity on both mitigating and aggravating circumstances. See id., at 384-389. Such consistent treatment did not, however, save the unanimity requirement for mitigating circumstances in that case. A State may not limit a sentencer’s consideration of mitigating evidence merely because it places the same limitation on consideration of aggravating circumstances. As the Court stated in Penry v. Lynaugh,
“Tn contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.’ McCleskey v. Kemp,481 U. S. 279 , 304 (1987) (emphasis in original). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense.” Id., at 327-328.
We conclude that North Carolina’s unanimity requirement impermissibly limits jurors’ consideration of mitigating evidence and hence is contrary to our decision in Mills.
It is so ordered.
Notes
N. C. Gen. Stat. § 15A-2000(e)(3) (1988).
§ 15A-2000(e)(8).
§ 15A-2000(f)(6).
§ 15A-2000(f )(2).
§ 15A-2000(f )(7).
§ 15A-2000(f)(9). Although this “catch-all” provision is provided by statute, it is grouped with the nonstaturory circumstances because it allows for the consideration of mitigating factors not statutorily specified.
In North Carolina’s capital sentencing scheme, if the jury finds a statutory mitigating circumstance to be present, that circumstance is deemed to have mitigating value as a matter of law. State v. Stokes,
In fact, this case presents an even clearer case for reversal than Mills v. Maryland,
Concurrence Opinion
concurring.
I join the Court’s 'opinion, but write separately only to underscore my conviction that Mills v. Maryland,
I
In the dissent’s view, the Court in Mills simply assumed, but did not decide, the invalidity of a requirement that mitigating factors could be considered by the jury only if they were found unanimously. That characterization cannot be squared with the text of the Mills opinion. Part II of that opinion directly addressed the question whether such a requirement was permissible. The Court concluded that a rule mandating unanimous agreement before any juror could consider a particular mitigating factor was forbidden by our decisions in Lockett v. Ohio,
The dissent acknowledges that “there is language in Mills . . . suggesting that a unanimity requirement would contravene this Court’s decisions.” Post, at 459. The dissent contends, however, that any such suggestions were dicta. In the dissent’s view the propriety of a unanimity requirement was not properly before the Court, since Maryland had conceded that such a requirement would be unconstitutional and
First, even if the issue had not been disputed, the Court’s resolution of the question would constitute a binding precedent. It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue. See, e. g., Teague v. Lane,
Moreover, the dissent distorts the record in contending that the propriety of a unanimity requirement was not at issue in Mills. The argument section of the petitioner’s brief in Mills began: “The underlying question is whether the Maryland Legislature may constitutionally require unanimous agreement by the jurors before any mitigating circumstance may be considered in the weighing process.” Brief for Petitioner, O. T. 1987, No. 87-5367, p. 9. The bulk of the State’s response was devoted to the argument that no
“Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence. However, Lockett and Eddings relate to restrictions on ‘input,’ not the subsequent deliberative process. Although a jury has twelve component parts, it is a single entity. The rejection of a mitigating circumstance, after introduction and full consideration of the evidence, is simply a factual determination. There is no legal impediment to the consideration of the evidence. The requirement of jury unanimity is simply not the type of restriction found unconstitutional in Lockett and Eddings. See State v. Kirkley,308 N. C. 196 ,302 S. E. 2d 144 , 157 (1983).” Brief for Respondent in Mills 19-20 (footnotes omitted).
The dissent quotes the first sentence of this passage, characterizing it as a “concession” by the State that a unanimity requirement would be invalid. Post, at 459. But since the remainder of the paragraph sets forth precisely the same argument in defense of the unanimity requirement that the dissent advances today, compare post, at 465-466,
II
I remain convinced, moreover, that Mills was correctly decided. It is apparent to me that the rule at issue here implicates the concerns expressed in Lockett and Eddings. In my view it is pointless to ask whether the sentencer in this case is the jury or the jurors. The jurors are the jury: and if 11 of them are forbidden to give effect to mitigating evidence which they deem persuasive, then the right guaranteed by Lockett has been effectively negated, even if the restriction is imposed by the 12th member of the sentencing body. If state law provided that all mitigating evidence was first to be presented to the foreperson, who could then decide what por
The dissent suggests that the rule announced in Mills is an aberration, a quirk of our Eighth Amendment jurisprudence. In fact, however, it is the North Carolina unanimity requirement which represents an extraordinary departure from the way in which juries customarily operate. Juries are typically called upon to render unanimous verdicts on the ultimate issues of a given case. But it is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.
As the dissent points out, our cases have upheld state rules that place upon criminal defendants the burden of proving affirmative defenses. See, e. g., Patterson v. New York,
Ill
In Mills, the Court described two scenarios in which the operation of the unanimity requirement would result in a sentence of death, even though 11 (in the first scenario) or all 12 of the jurors believed that the mitigating circumstances outweighed those in aggravation. In the first hypothetical, 11 jurors believed that six mitigating factors were present, but the twelfth juror’s veto prevented any of the evidence in mitigation from being considered at the final stage of the sentencing process.
Cf. United States v. W. T. Grant Co.,
Also compare Brief for Respondent in Mills 20, n. 7 (“Petitioner views a jury as twelve independent sentencers operating free of the views of the others. Such a view is completely contrary to any notion of guided discretion”), with post, at 469 (“Likewise incompatible with the Court’s theory is the principle of guided discretiоn that we have previously held to be essential to the validity of capital sentencing. . . . There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement”).
Nor does Justice White’s separate opinion in Mills v. Maryland,
Moreover, the jury’s inability to agree as to an ultimate issue typically results in a deadlock or hung jury. Here the inability to agree requires the jury to proceed upon the assumption that a particular mitigating circumstance has been proved not to exist.
There is one significant exception to this principle, but it does not support the dissent’s position. In federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeals are in general agreement that “[ujnanimity . . . means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specified offense.” United States v. Ferris,
Concurrence Opinion
concurring in the judgment.
• Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury’s ultimate decision will reflect the conscience of the community. Yet the unique interaction of the elements of the sentencing statute in issue here can allow the same requirement of unanimity to produce a capital sentence that lackg unanimous support of the jurors, and, more than this, is thought to be inappropriate by 11 of the 12.
As a consequence, the statute here can operаte in the same manner as the jury instructions in Mills v. Maryland,
That this case may be resolved on a ground more consistent with our precedents is evident from the Mills opinion itself. The relevant section of that decision begins:
“Petitioner’s argument is straightforward, and well illustrated by a hypothetical situation he contends is possible under the Maryland capital sentencing scheme:
“ Tf eleven jurors agree that there are six mitigating circumstances, the result is that no mitigating circumstance is found. Consequently, there is nothing to weigh against any aggravating circumstance found and the judgment is death even though eleven jurors think the death penalty wholly inappropriate.’ Brief for Petitioner 11.”486 U. S., at 373-374 .
Petitioner’s counsel emphasized this point in the brief discussion of constitutionality in the Mills oral argument:
“The problem with the constitutionality is that. . . you have the possibility of not 12 jurors agreeing but one juror deciding it’s death. And our position, of course, is it’s difficult to imagin[e] a more arbitrary system than luck of the draw: do I get one juror?” Tr. of Oral Arg., O. T. 1987, No. 87-5367, pp. 23-24.
The central idea of these passages is that thе death penalty should not be imposed on the basis of a single juror’s vote where 11 jurors think the penalty undeserved. The Court stated: “The possibility that a single juror could block [consideration of a mitigating factor], and consequently require the jury to impose the death penalty, is one we dare not risk.”
A holdout juror incident can occur under North Carolina’s statute if all jurors find an aggravating factor they agree to be of sufficient gravity to support a penalty of death, and 11 jurors find an outweighing mitigating factor that one juror refuses, for whatever reason, to accept. If the jurors follow their instructions, as we must assume they will, the 11 must disregard the mitigating circumstance. After the balancing step of the statute is performed, there can be only one result. The “ ‘judgment is death even though eleven jurors think the death penalty wholly inappropriate.’” Mills, supra, at 374. Given the reasoned, moral judgment inherent in capital sentencing by the jury, the extreme arbitrariness of this potential result is evident.
This said, it must be stressed that much in the opinion fоr the Court in today’s case goes, without cause, much further. It is true that, in addition to discussing the extreme arbitrariness of the statute at issue, the Mills opinion went on to state that the unanimity requirement was inconsistent with our holdings in Lockett, Eddings, Hitchcock v. Dugger,
I cannot agree with the Court’s statement today that “[o]ur decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all.”
I would recognize the arbitrary operation of the North Carolina system as the exclusive basis of our decision, for the unanimity requirement, standing alone, is not invalid under our Lockett line of cases. In Lockett itself, we invalidated an Ohio statute that precluded presentation of certain types of mitigating evidence to the jury. In Eddings, Skipper, and Hitchcock, we applied the same rule to judicial instructions that barred considerаtion of certain nonstatutory evidence bearing on the defendant’s character. More recently, in Penry v. Lynaugh,
The description of a “one juror veto” system in Mills as the “height of arbitrariness” supports the result here, and I would decide this case on that basis alone. I agree with Justice White, ante, at 444, that the discussion of Lockett in today’s opinion casts no doubt on evidentiary requirements for presentation of mitigating evidence such as assigning the burden of proof to the defendant or requiring proof of mitigating circumstances by a preponderance of the evidence. His opinion and our other cases already make clear that the discussion of Lockett in today’s opinion has no application beyond the issue presented in this case. Because of my concern that the opinion itself might otherwise have spawned confusing capital litigation over novel and unsupportable
Indeed, the broad language of today’s opinion might be read to suggest that a scheme requiring jury unanimity as to the presence or absence of a mitigating factor could violate the Constitution. Such a requirement, however, enhances the reliability of the jury’s decision without any risk that a single holdout juror may impose a sentence against the views of the other 11. Maryland claimed that its unanimity requirement operated this way in Mills. It is no surprise that the majority in Mills assumed such a scheme would be constitutional.
Dissenting Opinion
Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent.
I
Under North Carolina’s capital sentencing scheme, once a defendant is found guilty of capital murder, a separate sentencing hearing is held at which the State is permitted to introduce evidence of aggravating circumstances, and the defendant evidence of mitigating circumstances. Specific aggravating and mitigating circumstances are defined by statute, but the defendant is permitted to put forward any other mitigating circumstance he wishes. The State must prove the existence of the specified aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating factors by a preponderance of the evidence. For any aggravating or mitigating circumstance to be given operative effect, it must be found unanimously by the jury. Absent unanimity, the proponеnt of the circumstance has failed to meet his burden of persuasion, and the circumstance will be considered not proved.
In this case, the jury was given a special verdict form on which it was asked to answer four questions. First, whether it unanimously found beyond a reasonable doubt one or more specified statutory aggravating circumstances. The jury answered “Yes” with respect to two aggravating circumstances. Second, whether it unanimously found by a pre
I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. See Zant v. Stephens,
II
Before discussing the constitutional issue petitioner raises, I wish to address briefly the Court’s assertion that we have already addressed and resolved this very issue in the past— that “our decision [in Mills] clearly governs this case.” Ante, at 439. Although there is language in Mills v. Maryland,
The Court’s opinion in Mills begins by recounting that the Maryland Court of Appeals “did not dispute that if the statute and [verdict] form were read as petitioner suggested [i. e., to require mitigating fаctors to be found unanimously], jurors would be improperly prevented from giving due consideration to mitigating evidence.” Mills, supra, at 372 (emphasis in original). The State itself made the same concession in its brief before this Court. (“Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence.” Brief for Respondent in Mills v. Maryland, O. T. 1987, No. 87-5367, p. 19.)
The Court’s characterization of Mills as “holding that the instructions, if [interpreted to require unanimity], were unconstitutional,” ante, at 444, n. 8, and “striking] down the Maryland scheme,” ante, at 439, is pure revisionism. No Maryland scheme existed except the one authoritatively described by the Maryland Court of Appeals, see Mullaney v. Wilbur,
“The issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court’s opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court’s opinion.” Id., at 389-390.3
Ill
The constitutional issue conceded in Mills is both presented and contested in the present case. North Carolina’s capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors “from giving effect to evidence that they believe calls for a sentence less than death.” Ante, at 439 (citing Eddings,
With respect, “the principle established in Lockett” does not remotely support that conclusion. In Lockett, the Court vacated a death sentence imposed under a statute that limited the sentencing judge’s consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant mitigating circumstance proffered by the defendant. See Penry, supra, at 319 (“The sentencer must ... be able to consider and give effect to [mitigating] evidence in imposing sentence”) (emphasis added); Hitchcock, supra, at 394 (“[T]he sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence”) (internal quotations omitted; citations omitted; emphasis added); Skipper, supra, at 5 (mitigating “evidence may not be excluded from the sentencer’s consideration”) (emphasis added); Eddings, supra, at 114 (“[T]he sentencer [may not] refuse to consider . . . any relevant mitigating evidence”) (emphasis added); Lockett, supra, at 604 (“Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering” mitigating evidence) (emphasis added; footnote omitted). The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances.
What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so—
IV
Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compеlling — for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because
With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court’s result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant — for example, as a condition to establishing the defense of self-defense in a capital murder case, see Martin v. Ohio,
The Court discusses briefly one of the above cases (Patterson), in which we said that if a State “chooses to recognize a factor that mitigates the degree of criminality or punishment, . . . the State may assure itself that the fact has been established with reasonable certainty.”
Likewise incompatible with the Court’s theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, “must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia,
The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court’s own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. Ante, at 439-440. A jury, of course, is not a collection of individuаls who are asked separately about their independent views, but a body designed to deliberate and decide collectively. See Williams v. Florida,
Justice Blackmun contends that the State “defend[ed] the Court of Appeals’ judgment on the alternative ground that, even if a reasonable jury might have read the instructions as requiring a unanimous finding before any mitigating factor could be considered, that requirement would not contravene the dictates of Lockett and Eddings.” Ante, at 448. Presumably that defense would have gone somewhat as follows:
“Even though the Court of Appeals has authoritatively determined that Maryland law entitled this defendant to a jury instruction requiring a life sentence if any single juror found sufficient mitigation; and even though, as petitioner contends, the instruction here mistakenly required unanimity onmitigation; you must nevertheless uphold the death sentence because, even though Maryland law did not in fact require unanimity, requiring it would not be unconstitutional.”
It is facially implausible that Maryland’s Attorney General would be rash enough to make this argument — and even more implausible that we would entertain it on'its merits, rejecting it only because a unanimity requirement would, too, be unconstitutional. Quite obviously, the constitutional issue is irrelevant. Whether or not Maryland law could constitutionally require unanimity, the Court of Appeals authoritatively determined that it did not do so; and a death sentence based upon an erroneous instruction to that effect would have to be set aside. Justice Blackmun is correct that “[ajmbiguous jury instructions, even in a capital case, do not violate the Eighth Amendment simply because they are ambiguous,” ante, at 445, but they do violate the Due Process Clause if they misstate the law to the defendant’s detriment — and it is not essential to that violation that the law as misstated be an unconstitutional law. Thus, to take the most extreme example, if state law, as authoritatively interpreted by the State’s Supreme Court, does not authorize the death penalty for a certain offense, the Due Process Clause would not permit a state trial court to impose it even if the jury instructions comported with the Eighth Amendment. See Hicks v. Oklahoma,
The single passage Justice Blackmun relies upon from the the State’s brief does not support the unlikely proposition that the State made the previously described argument. It is plainly addressing the constitutionality, not of the erroneous instruction petitioner asserted had been given, but of the instruction provided by Maryland law as interpreted by the Court of Appeals. This is clear because it discusses the constitutionality of requiring unanimity for “[t]he rejection of a mitigating circumstance,” Brief for Respondent in Mills 19 (emphasis added). That was the Court of Appeals’ theory of what Maryland law required, whereas petitioner had argued that the instruction actually given required a mitigating circumstance to be rejected if even a single juror objected. The quoted passage appears, moreover, in a section of the brief entitled “The Maryland Court of Appeals’ interpretation of the statutory scheme is constitutional,” id., at 14 (emphasis added), which is a subdivision of a part of the brief entitled: “THE MARYLAND CAPITAL PUNISHMENT STATUTE AS INTERPRETED BY THE MARYLAND COURT OF APPEALS PERMITS
Justice Blackmun’s citation of cases in which we decided an issue that was not argued, ante, at 446, is irrelevant. Deciding what was not argued is quite different from deciding what was not presented. The situation in Mills was not merely that no one spoke in defense of the constitutionality of a statute similar to the one now before us; nor even merely that no one had an interest to speak in its defense; but that the constitutionality of such a statute was irrelevant to the outcome of the case. No such statute was presented by the facts, the Maryland Court of Appeals having interpreted its statute differently. It is extraordinary to suggest that we could pronounce authoritatively upon the constitutionality of a statute that did not exist.
Justice Blackmun states that “the meaning of a majority opinion is to be found within the opinion itself; the gloss that an individual Justice chooses to place upon it is not authoritative.” Ante, at 448, n. 3. That is certainly true where the individual Justice is not needed for the majority. But where he is, it begs the question: the opinion is not a majority opinion except to the extent that it accords with his views. What hе writes is not a “gloss,” but the least common denominator. To be sure, the separate writing cannot add to what the majority opinion holds, binding the other four Justices to what they have not said; but it can assuredly narrow what the majority opinion holds, by explaining the more limited interpretation
Justice Blackmun finds the analogy to affirmative defenses less than persuasive because he says that “it is not at all clear” that “the jury’s failure to agree as to an affirmative defense results in a conviction,” “rather than a hung jury.” Ante, at 450-451. It would be interesting to know the basis for that doubt with respect to the jurisdictions I have cited. Under New York law, for example, the jury's verdict — whether guilty or not guilty — must be unanimous. See N. Y. Crim. Proc. Law § 310.80 (McKinney 1982). When an affirmative defense is raised, “the court must carefully instruct the jury that they must be satisfied of defendant's guilt of the offense beyond a reasonable doubt before they may consider the affirmative defense.” Practice Commentary following N. Y. Penal Law S25.00, p. 77 (McKinney 1987); see People v. Morris, 68 App. Div. 2d 893, 413 N. Y. S. 2d 757 (1979); 31 N. Y. Jur. 2d, Criminal Law S 188, pp. 335-336 (1983) (“[Gjuilt must be established beyond a reasonable doubt before the jury can even consider an affirmative defense”). If the jurors follow their instructions, it would appear that the jury that has considered but not
Justice Blackmun believes that this grotesque distortion of normal jury deliberations cannot be blamed upon the rule the Court today announces, but is rather North Carolina’s own fault, because the scheme it has adopted represents “an extraordinary departure from the way in which juries customarily operate.” Ante, at 449. Typically, he points out, ju
Concurrence Opinion
concurring.
There is nothing in the Court’s opinion, as I understand it, that would invalidate on federal constitutional grounds a jury instruction that does not require unanimity with respect to mitigating circumstances but requires a juror to consider a mitigating circumstance only if he or she is convinced of its existence by a preponderance of the evidence. Under such an instruction, any juror must weigh in the balance any mitigating circumstance that in his or her mind is established by a preponderance of the evidence, whether or not any other jurors are likewise convinced. Neither does the Court’s, opinion hold or infer that the Federal Constitution forbids a State to place on the defendant the burden of persuasion with respect to mitigating circumstances. On this basis, I concur in the Court’s opinion.